This afternoon, the State of Texas filed motions to dismiss claims brought by the Texas Association of Hispanic County Judges and County Commissioners as well as the amended claims of the Texas League of Young Voters.
The motions were short and simply adopted by reference the arguments made in the state’s earlier filings with respect to other defendants.
Copies of the motions can be found below:
Judge Nelva Gonzales Ramos entered an order this morning denying the request of pollwatching group, True the Vote, to intervene in the Texas voter ID case.
True the Vote had sought to join the case in order to defend the Texas statute.
In rejecting the request, Judge Ramos held that True the Vote had not asserted a “particularized interest” threatened by the case and that its generalized interests were “adequately represented by the State Defendants.”
To the extent True the Vote had a contribution to make to the case, the court said it could “be accomplished without the necessity of, or burden incident to, making it a party” and that Judge Ramos would “duly consider any motion for leave to file briefing as amicus curiae that True the Vote may feel compelled to file.”
The Veasey plaintiffs amended their complaint Friday in the Texas voter ID suit to add a due process claim under the 14th amendment.
The new claim contends that the right to vote is a protected “form of liberty and property under Texas and federal law” and that:
SB 14 deprives Plaintiffs and other Texans of the right to vote without due process in a variety of ways, including, among other things, failing to provide adequate standards of uniformity in the treatment of voters, vesting excessive discretion in local officials, and arbitrarily picking and choosing which photo IDs would be valid and which would not.
The new claim joins claims previously asserted by the Veasey plaintiffs under section 2 of the Voting Rights Act as well as race discrimination claims under the 14th and 15th amendments, a non-race based equal protection claim under the 14th amendment, a 1st amendment free speech and association claim, and a claim that the Texas law acts as a poll tax barred under the 24th amendment.
The amended complaint also adds four additional individual plaintiffs from Bexar and Nueces counties.
The State of Texas filed a reply brief today defending Texas Attorney General Greg Abbott’s position that the voter ID suits filed by the Justice Department and by African-American and Hispanic voters should be dismissed without need for a trial.
In addition to challenging the standing of some of the individual and organizational plaintiffs, the brief reiterated the state’s contention that the claims should be dismissed because the Texas voter ID law was “no more difficult than ‘the usual burdens of voting’” and argued that the plaintiffs had failed to “produce or allege the existence of any person, of any race, who could not get a free EIC because of anything other than what may be fairly characterized as that person’s choice.”
The brief also took sharp issue with the claim by DOJ and minority plaintiffs that the Texas law was far more restrictive than the Indiana voter ID upheld by the Supreme Court in 2008 in Crawford. Indeed, the state argued that Texas’ law was less restrictive in some respects, e.g., pointing to the state’s administrative enactment of a $3 fee for birth certificates if needed by a person to obtain an election identification certificate. (The brief did not address birth certificates needed by people born outside of Texas.)
The state also rejected the notion that the law could be the product of intentional discrimination, citing, among other things, polling showing that voter ID laws were popular among African-Americans and Hispanics in Texas as well as recommendations of the election reform commission headed by former President Jimmy Carter and former Secretary of State James Baker.
Last but not least, the state continued to draw a hard line with respect to ‘results test’ in section 2 of the Voting Rights Act, contending that the test - if applied as DOJ and minority plaintiffs wanted - would unconstitutionally impose liability for disparate impact alone. Although DOJ pointed to precedent which it said held otherwise, the state took the position that precedent cited by DOJ should be read as only addressing redistricting cases.
With today’s filing, briefing on the state’s motion to dismiss is now complete.
Judge Nelva Gonzales Ramos has not said whether she will hold oral argument on the motion or when she will decide the motion.
African-American and Hispanic plaintiffs responded Monday in the Texas redistricting case to a request by the State of Texas to have the three-judge panel modify its 2011 discovery order to permit legislators and legislative staff asserting legislative privilege to withhold testimony until the court could make a pre-determination of whether the privilege applied.
In the state’s motion, it said the modification would bring discovery procedures in the redistricting case in line with those used in most civil cases.
However, African-American and Hispanic plaintiffs rejected that notion, telling the court that the state’s brief had presented “no new arguments or authority and only re-urges the State’s initial failed  motion.”
Calling the court’s 2011 discovery order “a common sense procedure for handling issues that might arise during depositions of legislators or legislative staff,” the plaintiffs said that the court was correct when it had held that “‘any sort of blanket protective order that would insulate witnesses from testifying would be inappropriate.’”
Instead, they said that continuing to use the in camera review procedure adopted by the court in 2011 was appropriate given the “particularly qualified” nature of common law legislative privileges and especially in light of the need in voting rights cases to uncover “invidious intent.”
Under that procedure, a legislator or staff member asserting a privilege would have to answer any questions asked but then - before the testimony could be used - it would be submitted under seal for the court to review.
Here are the responses:
DOJ also has filed a response on legislative privilege issues.
The response said that the court’s 2011 discovery order had “rightly rejected” the state’s request for a “blanket protective order based on legislative privilege” and, instead, had “struck a careful balance between relevant considerations.”
These included “allow[ing] important testimony to be heard, respect[ing] the important federal interest in enforcement of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, and serve[ing] the public good by revealing the truth about statewide redistricting.”
DOJ also rejected the notion that a July trial date weighed in favor of modifying the order, telling the court:
The parties agreed that depositions could begin on January 15, 2014, and there will be only four months before the May 14, 2014 discovery deadline. Defendants’ approach would waste resources and require expedited briefing to afford sufficient time to reopen depositions. Given that the general balance lans heavily toward disclosure, the Court’s existing procedures are more appropriate than reopening depositions following privilege litigation.
In any event, DOJ said that the state “had not established that a live controversy exists that would warrant modification” of the 2011 order, noting that none of the legislators deposed in 2011 chose to assert privilege.
Brittney Martin at the Dallas Morning News has this look at provisional ballots in the 2013 Texas election and finds that they more than doubled over 2011.
Sondra Haltom of Empower the Vote Texas writes at Burnt Orange Report about the problems three specific voters - all women - experienced at the polls earlier this month.
Monique Ching at the San Angelo Standard-Times reports that Tom Green County plans to go in 2014 from having its usual 5 early voting locations to just one - over objections of local Democrats.
David Rauf at the San Antonio Express-News writes about the request of State Sen. Wendy Davis and her fellow plaintiffs for attorneys fees in state senate case and the State of Texas’ objections to those fees.
Meredith McGehee has this piece in the Huffington Post about Congressman Blake Farenthold entitled “Poster Boy for Dysfunction: Redistricting, Citizens United & the Texas 27th.”
And last but not least, the Census Bureau has announced a nifty new mobile app for demographic data. The press release here.
In 2011, fights over legislative privilege were among the key side battles in the Texas redistricting cases in both San Antonio and Washington - and yielded some of the more interesting document finds in the case.
And by all accounts, they seem likely to be key battles again this go round as well, with the State of Texas filing a motion to have the San Antonio court modify the discovery procedures it used in 2011.
Those procedures, among other things, required legislators asserting privilege during a deposition to go ahead and testify under seal about allegedly privileged matters - with the court deciding afterwards whether the privilege indeed existed.
For the next round of litigation, Texas is asking that legislators be permitted to decline to testify until the privilege dispute is decided by the court.
African-American and Hispanic plaintiffs have told the state that they oppose modification of the 2011 procedures.
Voter ID plaintiffs responded Friday to attempts by the State of Texas to have Judge Nelva Gonzales Ramos throw out challenges to the state’s voter ID law, on both standing and substantive grounds, without need for a trial.
Here are the briefs:
The state has until December 6 to file reply briefs.
Application of Section 2 to Voting Administration Laws
All of the parties took strong exception to Texas’ contention that a facially race-neutral voting administration law - like SB 14 - cannot violate section 2 of the Voting Rights Act merely based on a disproportionate impact on certain racial or ethnic groups.
In its motion to dismiss, Texas had argued that accepting the plaintiffs’ interpretation of section 2 would mean that almost any voting law would result in a violation of section 2 of the Voting Rights Act since “[n]o voting law will have an impact that is symmetrical across all races,” telling the court:
Surely the Attorney General does not believe that the Voting Rights Act requires every State to abolish in-person voting and allow everyone to vote by mail, as Oregon has done. But that result logically follows from the Attorney General’s contention that lack of access to motor vehicles among racial minorities prohibits Texas from enacting a voter-identification law.
However, MALC and the NAACP told Judge Ramos in their brief that Texas’ argument was had “no textual support” and said that SB 14 was clearly “a ‘prerequisite’ to voting that will ‘deny’ or ‘abridge’ the right to vote within the plain meanings of those terms as used in Section 2.”
DOJ’s brief, likewise, told the court that the plaintiffs’ interpretation was consistent with a long line of section 2 cases holding that “the burden imposed by a contested practice need only ‘hinder [minority] citizens’ ability to to participate in the political process’ to violate Section 2.”
DOJ pointed, for example, to the Fifth Circuit’s decision in Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir. 1991), which upheld the invalidation of Mississippi’s dual voter registration system (requiring voters to register a second time for local elections) on the grounds that it imposed “administrative barriers … [that] are harder to overcome for persons of lower socio-economic status and persons of lower education attainment, a group that is disproportionately black.”
The brief also pointed to decisions ordering opening of polling places on a Native American reservations and striking down “the use of polling places at locations remote from black communities.”
The brief told the court:
It is spurious to argue that SB 14 cannot cause a denial or abridgment of the right to vote because anyone may vote if he or she ‘choose[s]’ to ‘spend … limited time and resources’ on obtaining an EIC. The decisions in Operation Push, as well as in cases requiring jurisdictions to move their polling places to provide equal access to minority voters, demonstrate why Texas’s argument must fail. If Texas’s strained reading of Section 2 were correct, it would not have been enough in Operation Push to show that ‘administrative barriers’ to voter registration interacted with the social and historical legacy of discrimination in Mississippi to result in unequal for black citizens. Instead, the plaintiffs in Operation Push would have been required to prove that minority voters were categorically unable to make two trips to the county courthouse in order to register to vote. But such a showing of impossibility is not what Section 2 requires.
DOJ also noted that the D.C. court’s pre-Shelby County opinion refusing to preclear SB 14 had rejected virtually the identical argument, with the D.C. panel writing:
[I]n an attempt to advance its own definition of ‘deny’ or ‘abridge’- one that would essentially exempt voter ID laws from section 5 preclearance - Texas ignores what the Supreme Court has said those terms mean … Just as educational and economic conditions might affect whether minorities ‘choose’ to vote, these conditions could also affect whether minorities ‘choose’ to obtain photographic identification.
In this case, DOJ said:
For many African-Americans and Hispanic Texas voters without SB 14 identification, traveling to a distant DPS office and incurring costs for the underlying documents necessary to obtain an EIC will impose burdens far more significant than those associated with registering to vote or traveling to a neighborhood polling place on election day. When viewed in the totality of the circumstances, the increased burdens that SB 14 imposes on Texas voters who do not have the required SB 14 photographic identification are well beyond those typically associated with voting, and, as a result will deny African-American and Hispanic voters an equal opportunity to participate in the political process.
The Impact of Crawford
The parties also disputed Texas’ contention that the Supreme Court’s decision in Crawford v. Marion County Election Board - which upheld Indiana’s voter ID law - was dispositive on the question of whether other voter ID laws were valid.
DOJ noted, for example, that:
Crawford contained neither a Section 2 claim nor any racial discrimination claim at all, but, instead, contained a First and Fourteenth Amendment facial challenge to Indiana’s photographic identification law (known as ‘SEA 483’). Indeed, the district court concluded that there was no evidence in that case that racial minority groups would be disproportionately impacted by Indiana’s law.
The brief also noted that SB 14 differed in significant ways from the Indiana statute:
Indiana’s law is far less restrictive than SB 14. For example, Indiana’s photographic identification law permits the use of any federal or Indiana identification with an individual’s name, photograph, and an expiration date after the most recent election. The law further allows indigent voters without identification to cast a valid vote by provisional ballot through filing an affidavit with a circuit court clerk or county election board.
The Veasey plaintiffs and LULAC expanded on these differences, noting that:
Voters without an acceptable voter photo identification under SB 14 must travel to DPS offices to obtain an election identification certificate. Barely half of Texas counties have a fully functioning DPS office, with about one-third of Texas counties hav[ing] no DPS office at all. This means that residents of those counties cannot qualify to vote in their own county. Further, although Defendants allege the election identification certificate is free, in actuality a voter must present documents to the DPS to obtain the certificate that are not free: the cheapest option is an original birth certificate which costs a minimum of $22. Further, to obtain an original birth certificate, an eligible citizen must travel to another government office to request and receive the document. Finally, none of this addresses the tens of thousands of eligible Texas citizens who cannot obtain a birth certificate at any cost because one is not available for them.
The Constitutional Limits of Section 2
The briefs also spent time addressing Texas’ contention that “[a]ny construction of the Voting Rights Act that precludes Texas from implementing its voter-identification law will exceed Congress’s enforcement power under … the Fifteenth Amendment.”
Calling Texas’ argument “meritless,” DOJ told Judge Ramos that “[w]hile the Fifteenth Amendment itself prohibits only intentional discrimination, the Supreme Court has held and ‘made clear that a violation of § 2 could be established by proof of discriminatory results alone.”
In fact, DOJ said “the constitutionality of Section 2’s results test has been upheld by the Fifth Circuit and avery other court to consider the issue,” explaining that:
In upholding the constitutionality of the results test, courts have noted that while the Constitution prohibits intentional discrimination, ’ Congress could rationally conclude that a different statutory test would permit fuller enforcement of that constitutional prohibition.’
The Veasey plaintiffs and LULAC were blunted, saying “[t]he problem is that defendants seem to believe there are really no constitutional limits on the State’s power to manipulate the voting process to favor and disfavor at the Governor’s and the legislators’ pleasure.”
The Nature of the Plaintiffs’ Section 2 Claims
In any event, the plaintiffs said in their briefs that Texas had seriously mischaracterized their section 2 claims as being limited to a theory based on “‘mere” disparate impact.”
MALC and the NAACP called the argument a “straw assertion,” and DOJ explained to the court that while disparate impact was a “highly relevant starting point,” it was only one part of a much broader inquiry under section 2:
Section 2’s ‘results test … does not look for mere disproportionality … . Rather, plaintiffs must establish that under the totality of circumstances, the challenged procedure prevents minorities from effectively participating in the political process.
That inquiry, the plaintiffs explained, requires looking not only at statistical differences but at socio-economic and historical factors, including “none non-exclusive factors” laid out in the Senate Report accompanying the 1982 amendments that adopted a ‘results test’ for section 2.
In this case, DOJ’s brief said:
The factual allegations contained in the United States’ complaint do more than establish an initial statistical disparity. The complaint alleges not only racial disparities in photographic identification possession rates, but also that the disparate socio-economic circumstances resulting from discrimination in education, employment, and housing, as described in Senate Factor 5, do not provide minority voters with an opportunity, equal to other members of the electorate, to obtain the requisite identification. This unequal ability also stems from an electoral system that is scarred by a legacy of intentional discrimination and by an ongoing lack of responsiveness to the concerns of racial minorities.
The Veasey plaintiffs and LULAC, likewise, said their complaint:
details a record of adjudicated voting rights violations extending to the present day, including judicial findings of intentional racial discrimination during the very legislative session during which SB 14 was adopted. This backdrop of racial voting discrimination is strong circumstantial evidence that SB 14 functions in a racially discriminatory manner that is qualitatively distinct from a case involving incidental statistical artifacts. This distinction is further reinforced by … the derogatory, racially charged campaign that accompanied passage of SB 14.
The Fifth Circuit Court of Appeals entered a two-line order today dismissing an appeal by the State of Texas that disputed the entitlement of State Sen. Wendy Davis to attorneys fees in connection with litigation over the 2011 state senate map.
Davis and her fellow plaintiffs had argued at the circuit that the state’s appeal was premature since only the right to fees, and not the amount of fees to be awarded, had been determined by the court.
The Fifth Circuit agreed 2-1, holding that it lacked jurisdiction at this time to consider the question of the Davis plaintiffs’ entitlement to fees. Circuit Judge Edith Jones dissented from the decision but did not write separately.
The Davis plaintiffs and LULAC filed an advisory with Judge Garcia on Monday, attaching a copy of the Fifth Circuit’s decision and “respectfully request[ing] that the Court proceed to issue the award of attorneys’ fees and expenses as set forth in their papers.”
After a hearing this morning, Judge Nelva Gonzales Ramos rejected the State of Texas’ request to move the start of trial in the voter ID case from September 2, 2014 to March 2015.
The September trial date leaves open the possibility that a ruling on the law could come in time to impact procedures in the November 2014 general election.
Texas Attorney General Greg Abbott had pushed for a later trial date on the grounds that changes to the law would be difficult to implement after mid-August and could result in voter confusion.
Following the hearing, the court also entered a scheduling order for the case, a copy of which can be found here. A calendar overlaying key dates in the voter ID and Texas redistricting cases can be found here.
In a filing late yesterday, lawyers for the Justice Department told Judge Nelva Gonzales Ramos that “a trial date in time for a decision to be issued by August 15, 2014 … would be extraordinarily prejudicial to the United States’ ability to present its case.”
However, DOJ said that a middle ground might be possible:
Given the competing interests and views that have been presented so far, the United States proposes the alternative that the Court establish a date in July or August 2014 by which parties, if they so chose, could file a motion for preliminary relief, rather than a trial on the merits. This would provide the parties with the incentive to develop and present as fully developed a record as possible un that period of time and the Court with the opportunity to review the record as it then exists and, based on that record, issue an order providing the requisite certainty as [to] what procedures would govern in the November 2014 general election.
The court is expected to decide later today what to do.
The Veasey plaintiffs and the Texas Association of Hispanic County Judges and County Commissioners responded in sharp terms this afternoon to a request by the State of Texas to move start of the voter ID trial from September 2, 2014 to March 2015.
In a filing with the court, they said that Texas had “produced nothing but conjecture” to support its request for a delay and took the state to task for not raising concerns about voter confusion before its most recent filing - calling the state’s assertions “simply after-the-fact pretexts.”
Instead, they told the court:
[I]f this Court were to strike down SB 14 and return elections to the traditional method, less confusion rather than more would result. The reason is obvious: It takes less effort and confusion to undo a new requirement - especially a complicated one - than to impose it. In 2012, Texas told the district court in Texas v. Holder that it would need to have a ruling in August in order to be able to implement a totally new photo ID law in time for the Presidential elections in November 2012.
By contrast, a decision to halt SB 14’s implementation will not require the same time or effort. To take one example, Keith Ingram states that ‘approximately 13 forms … were modified to implement the provisions of Senate Bill 14.” One of those forms was the provisional ballot … Implementing the new law required the state to update the provisional ballot so that election workers could indicate a voter’s lack of ID as the reason for casting a provisional ballot. But … a decision invalidating SB 14 would not require the State to change the form before the November 14 elections - it would simply render that check box superfluous.
Likewise, they told the court the process of educating voters that things were going back to the way they always had been was a much easier process.
Much of the time the State claimed it needed in 2012 was for the benefit of voters who would have to learn they needed more ID documentation and go get it. If this Court were to issue a ruling in the Fall blocking SB 14, voters need only be told they do not have to go through the often-difficult process of acquiring new documentation.
The filing also took exception to the state’s contention that a September trial would impact voters voting by mail, calling the state’s pleading “almost completely wrong” since, as “the Texas Secretary of State’s own website states … the new photo ID ‘requirement does not change the process for voting by mail.’”
At most, they said a change in enforceability of the voter ID law would impact:
a minute group of mail-in voters: first-time voters casting a ballot by mail whose Texas driver’s license number, or personal identification number, or last four digits of their social security number could not be verified at the time the first-time voter registered … If SB 14 is enjoined or modified by the Court, this tiny subset of first-time voters … could simply be provided with notification that the ID requirements remain what they have been in the past.
Urging Judge Nelva Gonzales Ramos to keep to the schedule she had set, they said the “trial date set by the Court serves the interests of the people of Texas by affording an opportunity to have this very important case heard at the most opportune time, i.e., before the new law is used in the major statewide and federal elections of 2014.”
[Update: With the scheduling order entered November 22 in the voter ID case, and the court’s decision not to move the start of trial, these dates have now firmed up.]
As Texas gears up for a busy year ahead in voting rights litigation, here’s a provisional look at how key dates would lay out on the calendar - assuming the voter ID trial remains set for September:
November 22 - Deadline in the voter ID case for the Justice Department and African-American and Hispanic plaintiffs to respond to the State of Texas’ motion to dismiss the claims.
December 6 - Deadline in the voter ID case for the State of Texas to reply to objections to its motion to dismiss.
February 7 - Deadline for plaintiffs in the redistricting case to designate testifying experts.
February 21 - Deadline for the State of Texas to designate testifying experts in the redistricting case.
March 3 - Deadline in the redistricting case to join additional parties or to amend and/or supplement pleadings.
April 2 - Deadline in the redistricting case for dispositive motions.
May 2 - Deadline for fact discovery in the voter ID case.
May 9 - Deadline in the voter ID case for designation of experts and furnishing of reports.
May 14 - Deadline in the redistricting case to complete supplementation of discovery.
June 2 - Deadline in the redistricting case for bench briefs on section 3 relief.
June 6- Deadline in the voter ID case for designation of rebuttal experts and furnishing of reports.
July 2 at 8:30 a.m. - Pretrial conference in the redistricting case.
July 14 at 8:30 a.m. - Start of trial in the redistricting case.
July 15 - Deadline for expert discovery in the voter ID case.
July 22 - Deadline in the voter ID case for dispositive motions.
August 4 - Deadline in the voter ID case for replies to dispositive motions.
August 21 at 9:00 a.m. - Final pre-trial conference in the voter ID case.
September 2 - Start of trial in the voter ID case.
October 20-31 - Early voting for the 2014 general election.
November 4 - 2014 general election.
UPDATE: Hearing on trial scheduling moved to Friday, November 22, at 11:30 a.m. Notice of resetting here.
The State of Texas filed an advisory with Judge Nelva Gonzales Ramos this afternoon asking Judge Ramos to move the start of trial in the voter ID case from September 2, 2014 to March 2015.
The state said that a September 2014 trial date would cause “logistical difficulties” and would have a “significant impact … on the ability of the Secretary of State and county election officials to conduct an orderly election in November 2014.” The state also said a voter ID ruling before the November election could “set the stage for possible unnecessary and avoidable voter confusion and disruption at the polling place.”
The advisory told the court that, among other things, a September trial date would interfere with the printing of election training and explanatory materials, which the state said had to be “at the printers by approximately August 15 for an upcoming November election.”
The advisory also said:
If the State were forced to alter or even un-implement a voting law after providing election materials and substantial training, the likely result is unnecessary and avoidable confusion at the polling place. Attempting to re-educate poll workers (most of whom are volunteers) on such a short timetable is simply not feasible, and the result would likely include confusion, delay, and possibly even inconsistent enforcement of Texas’ election laws.